Admissibility of Electronic Evidence – Part I (The Progress and Vision)

This post constitutes the first part of a three-post-series blog post dealing with the courtroom trend with respect to the development of jurisprudence with regard to the admissibility of electronic evidence.

This post (the first part) deals with the background and the problems with the admissibility of the electronic evidence where the author has given an account of the manifestation of the provision in brevity. The second part shall deal with the initial development of the jurisprudence on the admissibility of electronic evidence and pre-Anvar P.V. status. The third part shall deal with the post-Anvar P.V. status of the provision and the current scenario and conclusion of the series. 

The Evidence Act, 1872[1] (hereinafter, the Act), is said to be one of the brilliant pieces of legislation drafted during the colonial era, and which is still being followed. The brilliance could be elucidated by the fact that there have not been a lot of amendments proposed to this act since the time it was framed. One of the major amendments that were brought into the Act was the inclusion of the provision dealing with the admissibility of electronic evidence.

Being a party to the UNCITRAL, India was obligated to frame a law which could govern the actions undertaken in the arena of information technology. This gave way for the framing of the Information Technology Act[2] (hereinafter, the IT Act), in the year 2000. The advent of this act legitimately governed the transactions through the internet and other acts undertaken through the electronic medium. This set the path for the use of the electronic records as evidence to prove the factum probanda. In order to accommodate such a requirement, the amendment of the Act was necessary. This amendment manifested as a provision regarding the inclusion and admissibility of electronic evidence.

Section 64[3] of the Act limits itself to the primary evidence, whereas; section 65[4] deals with secondary evidence. The adduced evidence which does not get categorized under the ambit of section 64 inevitably falls into the ambit of section 65. In the case of secondary evidences, the burden of proof lies on the party putting forth the secondary evidence. The amendments brought forth were under section 65, as, section 65A[5] and section 65B[6]. Section 65A concerned itself with the admissibility of those electronic evidences which fulfill the criteria mentioned under section 65B. Therefore, in order to adduce the electronic evidence, it should satisfy the requirements mentioned under section 65B. This work primarily will be shedding light on this very development to an extent. The work will majorly deal with the analysis of the trend in which the courts have developed the jurisprudence, with respect to the rules regarding electronic evidence. The pronouncement of some of the major cases has been taken into account and the change in course of decision by the courts will be studied.

Issues with Admissibility of Electronic Evidence

The debate around the admissibility of electronic evidence exists for a long time now, especially due to a plethora of reasons associated to the genuineness and authenticity of the evidence so provided. Some of the issues related to the same are given below:

  1. One of the most clichéd issues is that there might be a possibility of alteration or manipulation done to the evidence between the date it came into being and the date it was produced before the court. This also forces an individual to reflect upon the fact that how much one can trust and rely upon the software or the algorithm responsible for the production of the data created.
  2. Since electronic devices are prone to the threat of being hacked unethically, this casts upon a question on the nexus between the document so produced as evidence and the person responsible for the creation of such document.
  3. The world today seems connected by virtue of virtual platforms of the likes of Facebook, Twitter, Snapchat, and Instagram etc. where finding the origin of the information could be difficult, and hence, relying on information extracted from such platforms also seems problematic.
  4. Considering the aforementioned, it might also be difficult to prove that who all had access to the device which created the information/data. There have been a large number of instances where people who executed a command in a device were not the actual users of the same. This problem is also faced in computers connected to Local Area Network (LAN).
  5. Tracking down the data through the internet has become complicated especially after the advent of the technology of cloud computing, as extracting such data might entail an obligation to follow contractual terms which will then be followed by taking proper permissions from courts of different jurisdictions.
  6. Another issue might emerge regarding the time when the data was created, as websites usually are seen to be updated constantly. This could pose a procedural as well as a substantive difficulty.
  7. Social media platforms have been facing the problem of fake information since its advent. Ascertaining the authenticity of the information and the place of origin is another huge problem which is faced in this law.
  8. Admissibility of electronic evidence is also said to be responsible for diminishing the line of difference between the primary evidence and the secondary evidence. This is because the statute has opened the gate for the inclusion of a large number of evidences associated with the electronic medium to be considered as primary evidence. This is especially because of the fact that most of the data produced by the electronic devices are not in the tangible form. Now, considering the same, it might be a brilliant contention of treating a printout of a word document as secondary evidence when the word document itself is a primary one. But then, we need to understand that the production of the primary evidence becomes impossible in case of electronic evidence.
  9. Though it is now an established conjecture that after the acceptance of electronic evidence, it has become comparatively easier to punish the perpetrators of terror attacks, due to the fact that they themselves resort to the use of advanced technology. But, it cannot be denied that such evidences are too prone to manipulation. Evidence tampering is an issue which is being faced since time immemorial, and it is even easier to introduce this when it comes to electronic evidence. Albeit the fact that the cyber forensics has come up with advanced algorithm to find out the possible tampers with evidences, but still, the area lies in the grey zone and is debatable.
  10. It is pretty obvious that the usage of electronic devices is increasing day by day. If a positivist approach is adhered to, then it might result in a possible opening of a floodgate for the admission of all sorts of electronic data as evidence. It is another debatable issue that to what extent does the ambit needs to be relaxed in case of admissibility of electronic evidence.

[1] The Indian Evidence Act of 1872.

[2] The Information Technology Act of 2000.

[3] Supra 1, section 64.

[4] Supra 1, section 65.

[5] Supra 1, section 65A.

[6] Supra 1, section 65B.


ABOUT THE WRITER

Shivam Sharan

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Shivam Sharan is a third-year law student at NALSAR University of Law, Hyderabad. Although he has no particular area of interests as such in the legal field, but he likes to keep experimenting with new things and is open to edification by way of exploration. Apart from his work, he likes painting and listening to music.

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